Grand Rapids Die Casting Corp. v. N.L.R.B.

• Decision Date: 17 November 1987
• Docket Number: 86-5709,Nos. 86-5650,s. 86-5650
• Citation: 831 F.2d 112
• Parties: 126 L.R.R.M. (BNA) 2747, 107 Lab.Cas. P 10,169 GRAND RAPIDS DIE CASTING CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 112

831 F.2d 112

126 L.R.R.M. (BNA) 2747, 107 Lab.Cas. P 10,169

GRAND RAPIDS DIE CASTING CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 86-5650, 86-5709.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1987.

Decided Oct. 13, 1987.

Rehearing Denied Nov. 17, 1987. ^*

Rehearing and Rehearing En Banc Denied Dec. 31, 1987.

Charles C. Hawk, William H. Fallon (argued), Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., for petitioner, cross-respondent.

Elliott Moore, N.L.R.B., Barbara A. Atkin, Dennis Walsh (argued), Washington, D.C., for respondent, cross-petitioner.

Before MARTIN and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

PER CURIAM.

Grand Rapids Die Casting Corporation petitions for review of a National Labor Relations Board decision adopting the recommendation of an administrative law judge that the Board order reinstatement of a union steward who had been discharged from her employment. The NLRB cross-petitions for enforcement of its order. We shall grant enforcement.

The employee, Sheilla Washington, was one of four union stewards employed at the company's Grand Rapids, Michigan, plating plant. She processed grievances for union employees who worked on the plating line. Ms. Washington worked in the autobuff department, and the union steward who would process any grievance she might have was Thomas Hogan.

After arriving for work at 6:00 a.m. on December 28, 1983, Ms. Washington obtained permission from her foreman, Daryl Hamp, to leave her work station to talk to a plating line employee, Gaida Ancans, about a grievance. Mr. Hamp also gave Ms. Washington permission to meet with Mr. Hogan about a grievance to be filed on her own behalf. By 8:00 a.m. Ms. Washington had discussed her own grievance with Hogan and had returned to work, but had not yet talked to Ms. Ancans. Hamp told Ms. Washington to deal with Ms. Ancans' grievance before taking her morning break.

The investigation of Ms. Ancans' grievance required a check of the plant's front office records, which took over 30 minutes. Upon her return from the front office Ms. Washington was met by Mr. Hamp and Michael Cleland, foreman of the plating line. Plant Manager Clare Johnston soon joined the group. According to Ms. Washington's testimony, Cleland was angry because he thought it should take no more than 15 minutes to write a grievance. Mr. Johnston ordered Ms. Washington back to work. Mr. Cleland, on the other hand, gave Ms. Washington 15 more minutes to finish her union business. The discussion was a heated one and was punctuated with profanity on the part of the management officials, according to Ms. Washington. (The management officials disputed Ms. Washington's account of the tone and content of the conversation, but this court, of course, is not in a position to judge credibility or resolve conflicts in testimony.) Claiming that she found the swearing and yelling abusive, Ms. Washington requested that she again be allowed to meet her union steward so that yet another grievance could be filed on her behalf. Mr. Cleland said that she should take 15 minutes and write the "damn grievance" and then hurry back to work. Since Mr. Johnston did not countermand this instruction, Ms. Washington assumed that she did not have to return to work immediately.

Ms. Washington began to walk away, remarking to Mr. Hamp that when she had finished talking to her steward she was going to the local NLRB office to file charges because of the abusive treatment. Ms. Washington testified that the plant manager became "really mad" and

"told me that if I left the shop--to go down to the damn Labor Board--that he would fire me. And he repeated three or four times--if I wanted to be fired. I told him--I had got angry by this time myself. And I told him I didn't care what he did--'cause he was going to do it anyway. And he told me that if I left the shop for any reason that day--that he would fire me."

In response to this Ms. Washington said that she had credits under the company's absenteeism policy that she could use to go to the NLRB office. Her understanding of the policy was that she would only suffer three days off by absenting herself from work.

Because she had not completed her work on the Ancans grievance, Ms. Washington returned to the union office, joining Mr. Hogan there. Hogan's foreman came in, stating he was under orders to punch Hogan out for the day if he did not immediately return to work. Mr. Hogan declined to do so. He completed the preparation of Ms. Washington's grievance and took it to the plant's front office, observing on the way that his time card had already been pulled. Plant Manager Johnston was standing in the reception area of the front office; he said to Hogan, "Tom, I'm going to give you and Sheilla something to go downtown [to the NLRB office] and file charges on now."

Ms. Washington completed her grievance writing before 9:00 a.m. and told Hamp she was ready to return to work, but she wanted to take her morning break first. Mr. Hamp permitted her to take the break. Another employee then told her that her time card had been pulled by Hamp. Ms. Washington approached Hamp and asked why her card had been pulled, but he simply told her to return to the union office.

Industrial Relations Manager Richard Cardinal returned to the plant at about 10:00 a.m. on December 28. On his arrival at the front office he received paperwork on suspensions of Hogan and Washington "pending discharge" for violation of Shop Rule 8, which prohibits insubordination. Both employees were charged with refusing to obey orders to return to work. The notices said that a hearing was scheduled for 9:00 o'clock the following morning. Mr. Cardinal went to the plant manager's office and was told by Johnston, Cleland, and Hamp that the two union stewards had refused to obey return-to-work orders. The Industrial Relations Manager agreed with the decision to suspend the two.

After Ms. Washington and Mr. Hogan had received their "suspension/pending discharge" notices, Johnston walked up to them and said, "Now you people got something to go down to the Labor Board for." This testimony, again, was disputed, but it was credited by the ALJ. Both employees were told that they could not go back into the plant. The two then went to the NLRB office and filed their unfair labor practice charges.

Mr. Cardinal tentatively decided on the evening of December 28 to discharge Washington, this being her second violation of Shop Rule 8. Although he had initially intended simply to impose a disciplinary layoff on Mr. Hogan, who had no prior violation, the latter's responses at the joint suspension hearing held on the morning of December 29 led Cardinal to discharge Hogan as well. The December 29 meeting was very brief, with the union making no serious attempt to discuss the merits of the two cases. Mr. Cardinal subsequently denied that the discharges were influenced by the two employees' union activities or the possibility that they might file charges with the NLRB. The Industrial Relations Manager did not learn that Ms. Washington had filed charges until a day or two later, when copies arrived in the mail.

Ms. Washington filed three grievances with the company, complaining of verbal abuse and protesting that her discharge was improper because it resulted from her union activities and her desire to file charges with the NLRB. The grievances went to arbitration. Following a hearing, the arbitrator decided that there was just cause for the discharge, Ms. Washington having failed promptly to obey a return to work order.

Prior to the arbitrator's decision the Regional Director of the NLRB had filed a consolidated complaint based on Hogan's and Washington's charges. A three-day hearing was held before an ALJ, and in a decision issued six months after the arbitrator's the ALJ found that Ms. Washington had not refused an order to return to work, that her union activities and her announced intention to file a charge with the NLRB caused her discharge, and that Mr. Johnston's December 28 threat to discharge Ms. Washington and the discharge itself violated Secs. 8(a)(1), (3) and (4) of the National Labor Relations Act. ¹ The NLRB adopted the ALJ's findings, conclusions and recommended order in a brief "Decision and Order" to which the petitions now before us are directed.

* * *

The pertinent provisions of the National Labor Relations Act, as codified at 29 U.S.C. Secs. 158(a)(1), (3) and (4), read as follows:

"(a) It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 [Sec. 7 of the Act] of this title;

* * *

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...;

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter."

We review the Board's findings with respect to questions of fact to determine if they are supported by substantial evidence. 29 U.S.C. Sec. 160(e).

As a threshold matter, we do not believe that the Board was required to defer to the arbitrator's conclusion that Ms. Washington's discharge was proper. The NLRB's deference policy balances the Board's responsibility to prevent unfair labor practices against the sometimes opposing objective of encouraging arbitration of labor disputes. Taylor v. NLRB, 786 F.2d 1516, 1518 (11th Cir.1986). Although the NLRB standards have shifted toward more frequent deference to arbitral decisions, see Olin Corp., 268 NLRB 573 (1984), the Board has consistently declined to defer in situations involving allegations that Sec. 8(a)(4) has been breached. International Harvester Company, 271 NLRB 647 (1984); Filmation Associates, Inc., 227 NLRB 1721...